Election 2004: How democratic are Australia's elections?

Marian Sawer, Australian National University

In Australia we ask every new citizen to pledge that they share our democratic
beliefs. How important are our democratic beliefs to the way we run federal
elections? Principles generally accepted as basic to democracy are those
of political equality and popular control of government. Flowing from
the principle of political equality is the principle that political parties
or Independents supported by citizens should be able to compete on a level
playing field. This means that political parties’ access to finance
and broadcasting time should relate to electoral support rather than business
backing or the benefits of being in office.

THREATS TO POLITICAL EQUALITY IN VOTING

Australia has long enjoyed an international reputation for the quality
of its electoral administration, in particular its non-partisan character.
For the last twenty years this tradition of professionalism and non-partisanship
has been underpinned by the statutory independence of the body responsible
for electoral administration, the Australian Electoral Commission (AEC).
It has also been advanced by the cross-party work of the federal parliament’s
Joint Standing Committee on Electoral Matters. Despite the best efforts
of electoral administrators, however, there have recently been some worrying
political developments that threaten political equality in voting.

Fear of electoral rorts has served
as a useful pretext for moves to ‘tighten up’
enrolment procedures.

Historically, Australian electoral administrators have aimed to maintain
an electoral roll that is as comprehensive as possible. Only if the roll
is comprehensive can voting reflect the preferences of all sections of
the community. The standard was set by the epic feat of enrolling 96 per
cent of the adult population on the first Commonwealth roll of 1903. The
objective of ensuring comprehensiveness has to be balanced by another
objective, that of preserving the integrity of the roll. In recent years
much publicity has been given to ‘rorts’ of the electoral
roll in Queensland, whereby voters enrolled at a wrong address in order
to vote in a Labor party pre-selection. In no case could the handful of
votes involved have affected the outcome of a parliamentary contest, and
they were not intended to. The exhaustive inquiries and audits of the
electoral roll instigated by the Howard government have confirmed this
general picture, the Australian National Audit Office (2002) finding over
96 per cent accuracy and over 99 per cent when matching the roll against
Medicare data. No evidence has been found to confirm the fears fanned
by small groups of widespread electoral fraud.

Nonetheless, fear of rorts has served as a useful pretext for moves to
‘tighten up’ enrolment procedures in a way likely to diminish
the comprehensiveness of the roll in the name of preserving its integrity.
For example, the Howard government has made repeated attempts to introduce
evidentiary requirements for new enrollees that would have disparate impact
on certain sections of the population and erode political equality.

Such change has been strongly resisted by State Labor governments, who
have joint electoral roll arrangements with the Commonwealth. They argue
that the cost and inconvenience of having to produce original documents
such as a birth certificate or, alternatively, referee reports from a
prescribed class of witness, will discourage eligible voters. Such requirements
are likely to exacerbate existing problems of under-enrolment amongst
youth and other groups such as Indigenous Australians and the homeless.
They had this effect when introduced by a conservative government in Western
Australia in 1979. It is reasonable to view these groups as less likely
to vote for conservative parties—which might help explain why the
federal government has tried to disenfranchise them.

On evidentiary requirements a compromise has finally been reached with
the Electoral and Referendum (Enrolment Integrity and Other Measures)
Act 2004. After 1 July 2005 regulations will require new enrollees
to provide the number of their driver’s license, or, if they do
not possess a driver’s license, to have their application countersigned
by two people on the electoral roll who can confirm the applicant’s
identity and address. The act also includes provision for review of the
effect of these requirements on enrolment.

The Howard government has also sought to stop new enrolments immediately
the writs are issued for an election and to reduce to three working days
the time allowed to change enrolment details. This would particularly
affect young voters who put off enrolling until an election is announced.
Currently the rolls stay open for seven days after the issuing of the
writs and 83 000 first-time voters enrolled in this period in 2001 while
290 000 voters updated their address or name details. The government’s
proposed changes were rejected in the Senate in June 2004.

The Howard government sought
to remove the right to vote from all prisoners.

At the same time the Howard government also sought to remove the right
to vote from all prisoners. Currently only prisoners serving sentences
of five years or more are disqualified from the federal vote while they
are in prison. (The picture varies in the States from no disqualification
in South Australia to all prisoners being disqualified from voting in
State elections in Tasmania.) In June 2004 Labor made what turned out
to be an unworkable amendment to the prisoner disenfranchisement proposal,
which in turn had to be fixed in August 2004 by a new Bill removing prisoner
voting rights from those serving sentences of three years or more—the
Electoral and Referendum Amendment (Prisoner Voting and Other Measures)
Act 2004.

These proposals and decisions have taken Australia out of step with international
developments. Internationally, prisoner voting rights are increasingly
seen as part of rehabilitation into the duties of citizenship as well
as being entailed by Article 25 of the International Covenant on Civil
and Political Rights. In 2002 the Supreme Court of Canada found in the
case Sauvé v. Canada that disenfranchisement of prisoners contravened
the Canadian Charter of Rights and Freedoms and was therefore invalid.
In March 2004 the European Court of Human Rights found that the United
Kingdom’s denial of voting rights to all prisoners was arbitrary
and harsh, and hence in breach of the European Convention on Human Rights.

Despite these international trends, the impact of heightened law and
order discourse in Australia has meant that Labor has been reluctant to
take a strong stand on this ‘wedge’ issue. By contrast, the
Australian Democrats and the Greens have not been so reluctant to speak
out. The minor parties have highlighted the disparate impact of prisoner
disenfranchisement on Indigenous Australians (who are fifteen times as
likely to be in prison as non-Indigenous Australians) as well as other
dangers of the archaic concept of ‘civil death’.

PROBLEMS WITH POLITICAL FINANCE

The ‘integrity of the roll’ red herring has effectively sidetracked
efforts to deal with the burgeoning democratic issue of political finance.
It served to put on hold the inquiry by the Joint Standing Committee on
Electoral Matters into electoral funding and disclosure in 2000 and distracted
attention from the revival of the inquiry in 2004. The new inquiry was
due to report on 30 September but has lapsed with the dissolution of the
House of Representatives for the election. During these years Australia
has fallen well behind comparable democracies such as Canada and the United
Kingdom, and has one of the least regulated systems of party finance among
Western democracies.

At the federal level Australia has a mixed system of public and private
funding of political parties, but unlike other democracies it has no restrictions
at all on the level or source of private political donations. All that
is required is that donations over $1,500 be disclosed to the AEC—and
the Howard government has even been trying to raise this threshold. Nor
does Australia have any restriction on campaign expenditure by parties.
This laissez-faire attitude allows corporations to purchase political
influence in clear contravention of principles of political equality and
popular control of government. Yet it is regarded as completely normal,
and part of the way things are done (Hindess 2004). The United Kingdom
introduced national campaign expenditure limits in 2000 (with the Political
Parties, Elections and Referendums Act 2000) to prevent the risk of
corruption posed by increasing reliance on large corporate donations.
The same Act also requires prior shareholder approval for corporate donations
to political parties as well as disclosure in the directors’ annual
report. Under this new regime the campaign expenditure of the largest
three parties dropped sharply in the 2001 election (Tham & Grove 2004).
No such shareholder approval is required in Australia.

Australia has no restrictions
at all on the level or source of private political donations.

There is also a more general effect on the operation of a competitive
party system if the playing field is biased in favour of those parties
more likely to receive corporate largesse. There has been no attempt in
Australia to make abstention from corporate money a condition of receipt
of public funding, or even a matter of voluntary agreement between all
parliamentary parties, as has occurred in Sweden. Consequently the Labor
and Coalition parties receive far more funding per vote than the Australian
Democrats and Greens because the major parties’ funding is topped
up by large corporate donations. Public funding maintains the political
equality rule, with every vote earning the same payment—currently
$1.94 per vote. But no such rule constrains corporate funding. And it
makes a difference: the AEC Funding and Disclosure figures show that in
2000–03 public funding made up less than 20 per cent of the total
receipts of Labor, Liberals and Nationals, but around a third of the receipts
of the Australian Democrats and Greens.

The skewed funding the major parties receive pays for another source
of political inequality—television advertising. Australia places
no restrictions on the amount of electronic advertising that political
parties may purchase. By contrast, the United Kingdom does not allow paid
electronic broadcasting on the grounds that to do so would give an advantage
to the best financed parties or candidates. Instead party election broadcasts
are allocated to parties on the basis of their electoral support. Similarly
in New Zealand parties may not purchase advertising beyond the allocation
of funds for this purpose from the Electoral Commission, which allocates
these funds on the basis of electoral support as measured by votes, opinion
polls, and other factors.

Minor parties such as the Australian Democrats and the Greens have a
natural interest in the levelling of the playing field and have led the
way in seeking increased regulation of donations, and limits on their
size and source. The Commonwealth Electoral Act currently only requires
the AEC to post disclosure returns annually and this may occur long after
an election, when public interest has evaporated. Labor has announced
it will not accept donations from tobacco companies and has handed back
a donation from the ethanol producer Manildra, but, like the Coalition,
it has accepted donations from a number of dubious sources. Even the Australian
Democrats accepted money from James Hardie in 2001.

Other democracies have had a more robust approach to this problem (Orr
2004). Some place ceilings on party expenditure. Some ban certain sources
of funds such as foreign donors and government contractors. The Greens’
attempt to ban developer donations in NSW, the Developer Donations
(Anti-Corruption) Bill 2003, would fall into this category. Some 23
countries, now including Canada, ban corporate donations outright. Australia
is very much at the laissez-faire end of this regulatory spectrum, having
no bans or limitations on private money except for that given anonymously.
Disclosure provisions mean that donations over $1,500 must be declared
both by the donor and in party returns in most Australian jurisdictions.

Despite there being relatively few rules, Australian political parties
still find ways to get around disclosure requirements. For example, parties
use fund-raising organisations that are not classified as associated entities
of the political parties and hence not subject to disclosure provisions.
Corporations in receipt of government contracts have channelled large
sums to political parties in this way. Moreover, as a recent Parliamentary
Library Research Note has pointed out, the current disclosure law may
allow concealment of the very kind of donation-linked influence it is
intended to expose (Miskin 2004, p. 3). If a businesswoman pays $10 000
to attend a fund-raiser, and believes her business has benefited from
her contact with a political figure, she does not have to lodge a return
as she has received something in return for her money—that is, it
was a purchase rather than a donation. The party would have to include
the $10 000 in its disclosure report, but under the general heading of
‘receipts’ rather than gifts.

THE BENEFITS OF INCUMBENCY

Governments exploit the benefits
of incumbency by using public funds for partisan purposes.

The problems for political equality are created both by the ability of
corporate donors to purchase access to ministers and shadow ministers
and by the skewing of electoral competition in favour of parties closest
to business interests. An additional problem for democracy arises when
governments exploit the benefits of incumbency by using public funds for
partisan purposes. Both Labor and Coalition governments have done so in
recent years. Several strategies are available. When in government, both
parties have set up units to monitor the media statements of the opposition.
There is also a great deal of publicly funded travel to marginal seats
by both ministers and shadow ministers and their staff in the run up to
elections.

Another such practice is use of the parliamentary printing allowance
to fund an enormous amount of what is effectively direct canvassing by
mail to constituents. In 2001, the Howard government set the printing
allowance for members of the House of Representatives at a maximum of
$125,000 per annum. In August 2003 it tried to increase it to $150,000
per year. The regulation increasing the allowance was disallowed in the
Senate on a motion from Senator Bob Brown supported by the Democrats and
Labor. Direct mail is targeted with the help of the electronic version
of the electoral roll made available to sitting members and registered
political parties and through the use of party databases. Training in
these databases (Electrac and Feedback) is publicly funded under the Parliamentary
Entitlements Act and related provisions for staff training (van Onselen
& Errington 2004).

One incumbency benefit that has loomed larger and larger and is only
available to incumbent governments is the use of government advertising
for partisan purposes. Political scientist Sally Young (2003) argues this
has become one of the greatest benefits of incumbency. Since 2000 the
federal government has been the top spending advertiser in the country,
spending more than the big commercial advertisers such as Coles-Myer,
Woolworths, and McDonalds. There are spikes in government advertising
in the periods immediately prior to elections. In 1996 the Keating government
spent $9 million on advertising in the three months before the federal
election, in 1998 the Howard government spent $29.5 million in the three
months before the election, and in 2001 the government spent roughly $78
million in the four months before the election (Grant 2004, p. 6).

In the run-up to the 2004 election there has been a deluge of such advertising,
typically promoting another incumbency benefit: the ability to produce
a generous pre-election Budget. Whole-page newspaper ads after the May
Budget informed voters about the ‘Disciplined, focused hard work
and experienced economic management’ that would mean extra funding
for the States and Territories in the coming year. The Australian Capital
Territory (ACT) version published in the Canberra Sunday Times on
16 May 2004 included an unfortunate picture of a train (‘More Funds
for Public Transport’), just after Canberra’s train service
had been cut from three to two a day. It also included a picture of a
NSW school zone sign (‘More Funds for Schools’) and ended
‘That amounts to a fair go for all Territorians’. This election
advertisement carries the requisite caption ‘Authorised by the Australian
Government, Capital Hill, Canberra’.

Other election advertisements authorised by the Australian government
include the current $15.7 million ‘Strengthening Medicare’
advertising campaign with its expensive brochure adorned by full-page
colour photographs and text ‘Written by Senator the Hon. Eric Abetz,
Special Minister of State’. Unlike Canada, New Zealand and the United
Kingdom Australia has introduced no controls over the partisan use of
government advertising.

OTHER PROBLEMS WITH AUSTRALIA’S ELECTORAL SYSTEM

There are significant problems
with the ballot design for above-the-line voting for the
Senate.

Disenfranchisement, lax party finance rules, and incumbency benefits
are not the only threats to the democratic values of political equality
and popular control of government within Australia’s federal electoral
system. Apart from the Constitutionally imposed inequality whereby Tasmanian
Senate votes are worth thirteen times as much as votes in New South Wales,
there is also the more recent legislatively imposed inequality whereby
Northern Territory House of Representatives votes are worth twice as much
as ACT votes. Labor supported the Government’s move to overturn
the 2003 federal redistribution and guarantee a minimum of two seats to
the Northern Territory for the forthcoming federal election. Under the
House of Representatives (Northern Territory Representation) Bill 2004
both Territories will have two seats, although the ACT has twice as
many voters. A victory, perhaps, for those who believe Canberra residents
are not ‘real people’ and hence not entitled to a vote of
equal value.

There are also significant problems with the ballot design for above-the-line
voting for the Senate. There is no provision for voters to express their
own preferences between parties when voting above the line, and the registered
party tickets may not reflect such preferences—for example, in 1984
NSW Labor decided to preference the Coalition above the Nuclear Disarmament
Party. Ironically that decision cost Peter Garrett his Senate seat; twenty
years later he will enter the House of Representatives as the Labor member
for Kingsford Smith. Independent candidates are severely disadvantaged,
as are those who might wish to vote for them, by a lack of provision for
ungrouped candidates in the less complicated above-the-line option preferred
by most voters.

CONCLUSION

The rules of the election game are stacked against the principles of
political equality and popular sovereignty in the coming federal election.
Australia still has a system of electoral administration that is the envy
of the world but we have fallen well behind other democracies when it
comes to regulating political finance and restricting the role of private
money or government advertising in electoral politics.

Marian Sawer is professor of political
science in the Research School of Social Sciences, Australian National
University and is currently leading the Democratic Audit of Australia.
Her most recent book (edited with Barry Hindess) is Us and Them: Anti-Elitism
in Australia.